Yusuf v Rex (Cr. App. 33/1929.) [1929] EACA 140 (1 January 1929)

# COURT OF APPEAL FOR EASTERN AFRICA.

# Before Sir JACOB BARTH, C. J. (Kenya); PICKERING, C. J. (Zanzibar), and SHERIDAN. C. J. (Tanganyika).

## MOHAMED YUSUE

### $\overline{v}$ . REN.

#### Cr. App. 33/1929.

- The Indian Evidence Act. 1872, section 32-cases in which a statement of relevant fact made by a person who is dead, or cannot be found, etc., is relevant. - $Held$ :—That where it is sought to prove a medical report or death certificate evidence must be adduced to show that the document had been written in the discharge of professional duty. Proof of the fact of professional duty cannot be obtained from the contents of the documents proffered as relevant facts under the provisions of Section 32 of the Evidence Act.

#### Hopley for appellant.

## Solicitor-General (Kenya) for Crown.

JUDGMENT.—The first contention argued on behalf of the appellant in this case relates to the admissibility of two documents styled a medical report and a death certificate. Of these documents it was proved that each had been written by a Dr. Cochrane and that Dr. Cochrane "who was a doctor in the East Africa Medical Service " was in England at the time of the trial. The doctor was thus shown to be a person whose attendance at the trial could not have been procured without an unreasonable amount of delay and expense. Statements then such as medical reports or death certificates written by him became relevant facts and admissible in evidence if it were also shown that such documents had been written in the discharge of his professional duty. No evidence was adduced indicating what Dr. Cochrane's professional duties had been at any time material to the issues raised at the trial. The period of time during which the doctor was a member of the local medical department was not proved. It is impossible to aver that the writing of the death certificate of any person who dies in the Native Civil Hospital at Nairobi falls within the scope of the professional duties of each doctor who at some time or other has been employed in the East Africa Medical Service. Proof of the fact of professional duty cannot be obtained from the contents of the documents proffered as relevant facts under the provisions of section 32 of the Evidence Act. It is manifest that a statement or memorandum cannot be treated as relevant and admissible under that section before each of the

conditions constituting the fact of relevancy as set forth in that section have been established by extrinsic evidence. In our opinion the documents described as a death certificate and a medical report were not shown at the trial to be admissible and must be excluded from the record in a consideration of the merits of this appeal.

Another document which the appellant sought to exclude was the record made by the Resident Magistrate of the dying declaration of Mohamed Awad. This statement was clearly a relevant fact and its terms were carefully established by the Magistrate's evidence. It was suggested before us that the statement of Mohamed Awad was not complete. If a statement is incomplete and there is any reason for believing that the actual utterances would have been qualified by other words which the dying man wished to utter but was by some cause prevented form uttering, the value of the statement actually made is impaired, and as evidence may be of no weight. We can however presume no grounds upon which the suggestion can be based that the memorandum of Mohamed Awad's words represents an incomplete or unfinished statement. A perusal of the memorandum gives the contrary impression, and the learned trial Judge rightly admitted and attributed importance to this statement. For the rest the appeal consists of an invitation to this Court to review the evidence and consider whether the conviction entered reasonably follows from the recorded evidence. We are of opinion that by the exclusion of the death certificate and the medical report the case now before us for review has not been changed materially from that which was considered by the learned trial Judge. There is evidence of the death of Mohamed Awad and of the character of his wounds upon the file, and no reasonable doubt can be felt as to the fact or cause of death.

We have been invited to consider the possibility that Mohamed's stomach wound was caused accidentally in the course of a struggle between him and the appellant. We are unable to agree that such a finding is reasonably consistent with the recorded evidence. The case as presented fully sustained the charge laid against the appellant; and the statements made by him at the trial are in our opinion, where they conflict with the evidence of the prosecution witnesses, manifestly untrue.

This appeal stands dismissed.